IEEE Celebrates Bilski Ruling With Misleading Press Release

from the software-patents? dept

Glyn Moody points us to the news that the IEEE has put out a press release celebrating the Bilski ruling. This is reasonably upsetting many who find software patents abhorrent to those who believe in technological progress. The IEEE had been part of an amicus filing, where it asked the court for clarity, so it’s a little surprising to celebrate this ruling, which provided no clarity at all. Instead, the IEEE claims it’s happy that “The U.S. Supreme Court ruled 5-4 Monday that a new method of doing business can be patented, and that the ability to patent software should not be limited.” Except the overall ruling was 9-0, not 5-4 (though, the majority binding part of the ruling was 5-4), and the majority ruling doesn’t actually make it clear that the ability to patent software should not be limited. In fact, it skips over that question pretty much entirely. So it’s not clear what the IEEE is celebrating other than that the court didn’t actually address software patents.

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Comments on “IEEE Celebrates Bilski Ruling With Misleading Press Release”

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36 Comments
Anonymous Coward says:

Re: Re:

it is absolutely a victory for them. if the court had seen something so terribly wrong, they might have taken action. failure to take any action is a clear indication that they will not address the issue until someone brings them a more on point and relevant case, and in the mean time, the status quo is the ‘law of the land’. so if it takes 5 or 10 years for another case to get there, they have basically won a victory for as long as that goes on.

those who hate on patents of all sorts will be disappointed and try to say that no judgment was made, but the absence of a judgment has exactly the same effect for the moment as approving something, at least for the time being.

Jose_X (profile) says:

Re: Re:

The Court re-affirmed that algorithms (mental steps) cannot be patented except, very likely, only as part of a process that transforms something. [The USPTO would do well to limit to maximum of a very small number the granting of any patents that does not pass the machine-or-transformation test.]

The most support for software patents that we get from the SCOTUS is likely Diehr, where (a) that was an apparently novel matter transformation being patented and (b) the software formed but a few of those steps such that you could actually replace the software with a human and still end up with the same effect and likely the patent.

Diehr was completely different from essentially simply running novel software on a device and then, eg, displaying the output of those algorithms (mental steps) via an obvious transformation of the digital values held in display memory into the light waves to show the results to the devices user. The data processing results were derived from mental steps manipulating the abstraction of information using the device hardware rather than the human mind (not patentable since it’s no more than effecting the algorithm on the abstracted informational content). Displaying the results is obvious post-solution activity that can’t make the whole process patentable as reinforced in Bilski from Flook.

Not to be lost is that the patent in question also simply referred to actions people could take and had no transformation of matter or no new machine. It was denied 9-0.

Not to be lost either is that the majority said nothing much new on software patent, while a minority of 4 (Stevens) certainly looked at the question of (a) the need to promote the progress, (b) how monopolies taking from society can be an “embarrassment” (via Thomas Jefferson), etc.

Note that the other minority of 4 (majority opinion throughout the sections where Scalia bailed) stated they did not want to say anything at all against software unnecessarily, but also made clear they were not implying that they think software should be protected at all.

There is a very bright side in this for those against software patents (besides what was mentioned about how it is now perhaps less clear that a software patent will be acceptable): it will be more difficult to justify granting any patent that does not perform a novel transformation of matter; we had reinforced just the past rulings needed to dump pure software patents running on simple machines; another example (Bilski) of a fully rejected patent appears to support this further; and the serious conversation over “promoting the progress” appears to be on track to lead to further better changes in the future.

Jose_X (profile) says:

Re: Re: Re:

>> The data processing results were derived from mental steps manipulating the abstraction of information using the device hardware rather than the human mind (not patentable since it’s no more than effecting the algorithm on the abstracted informational content). Displaying the results is obvious post-solution activity that can’t make the whole process patentable as reinforced in Bilski from Flook.

I should have clarified that the computer that does the number crunching for the human is a patentable invention, but most people against software patents admit the hardware might be patentable. They key is not to give a new patent for every new set of algorithms being done in software.

Today, those wanting to acquire “software patents” with teeth will have to describe a new hardware machine or else likely a process that changes matter in a novel way. Without this sort of specificity (which, btw, does not cover running the software on a typical consumer device), they would likely get a rejected patent for being “abstract” much as Bilski was rejected.

Jose_X (profile) says:

Re: Re: Re:

>> There is a very bright side in this for those against software patents (besides what was mentioned about how it is now perhaps less clear that a software patent will be acceptable): it will be more difficult to justify granting any patent that does not perform a novel transformation of matter; we had reinforced just the past rulings needed to dump pure software patents running on simple machines; another example (Bilski) of a fully rejected patent appears to support this further; and the serious conversation over “promoting the progress” appears to be on track to lead to further better changes in the future.

Another benefit from Bilski for those of us strongly against software patents (and especially business method patents) is that Stevens wrote some very fine points that a future Court might end up echoing more strongly.

Anonymous Coward says:

That ruling is enough to confuse anyone, granted. (If I understood it right from what people have been talking about, it has two parts, one which was 5-4 and the other which was 4-5, except that half of that second part is in fact 5-4, and part of THAT repeated some things from the first part, making these parts 9-0… OK, I think I did not understand it right at all.)

Not to mention that (again from what people have been talking about) it says that the test used by one court is right but is not the whole test, while saying “nothing in this decision says the other test is right at all” (at least twice).

And the people commenting about it, start saying it is a disappointment, later the same day say it is a great result, and a few hours later say it is so-so…

I think anyone can be forgiven for being a bit confused. From an outsider point of view, it looks more like a Rorschach test than a court ruling: what you see in it reflects what you think about the issues in question.

Anonymous Coward says:

I daresay that the IEEE is not “celebrating” the decision. As its amicus brief noted, a spate of prior cases (the Flook, Benson and Diehr “trilogy”) by the Supreme Court added confusion, and not clarity, in the area of “processes” wherein software is involved.

Its brief called on the court to reject its prior, inconsistent, confusing, irreconcileable “trilogy”, and adopt what the IEEE believed to be a relatively straightforward, bright line test. The court, for whatever reason, chose not to do so…continuing to give stare decisis effect to its prior decisions. In this regard the court did virtually nothing to add clarity in this area, clarity of the very type advocated by Messers. Bessen ane Meurer (sp?) in their recent book.

If it can be said that the IEEE is “celebrating”, such “celebrating” is almost certainly based upon the court not making the current state of affairs significantly worse than it already is.

Andrew D. Todd (user link) says:

Legitimate Business Patents are an Imaginary Category, Bilski or No Bilski.

Experience shows that truly novel and un-obvious business methods tend to be dishonest. There’s a rather smug traditional one-liner which goes: “We didn’t invest in this scam, because we were so dumb that we couldn’t see how it was supposed to work!” Bernard Madoff is an exemplary innovative businessman, like Michael Milken, Ivan Boesky, and Bernard Cornfield before him. All of them eventually visited “Club Fed.” The rules of honest business tend to be more along the lines of “No sudden moves, keep your hands where I can see them,” etc.

Now, of course, there are a lot of business method patents which amount to nothing more than computerizing and internet-izing established conventional business practices. The Supreme Court has ruled these patents to be obvious. The business practices underlying these patents tend to be very old– they go back to the fifteenth century, in many cases. The tendency of computer technology is actually to simplify business, because it reduces time-lags. In the year 1450, in November or December, an Italian merchant in, say, Bruges, had to accept that he would not have any communication from the home office until the snow in the Alpine passes melted, say, in March or April, 1451. That meant he had to do a lot of stuff on guesswork. A merchant no longer has to guess at the credit-worthiness of a customer, because an electronic funds transfer has cleared within seconds. Similarly, mail-order dates to at least the early eighteenth century, that I know of. Look at T. H. Breen’s _Tobacco Culture:
The Mentality of the Great Tidewater Planters on the Eve of Revolution_ (1987) to get an idea of how George Washington and William Byrd II of Westover did their shopping. Again, there were complexities inherent in the time and distance separating customer from merchant. You might also look at George Washington’s notorious expense account (Marvin Kitman, _George Washington’s Expense Account_, 1970). There is nothing very new under the sun.

Anonymous Coward (profile) says:

It's okay to admit that you don't know what you're talking about.

Do you think it might be possible that the justices of the Supreme Court might know a little more about interpreting statutes than you and all the other “no-software-patents” kooks? Have you actually read the opinion? Do you understand the roles of the judiciary and Congress in our form of government?

Let me make a few simple points here, in response to the points you make in your post in the order you present them:

1. If you’re so upset about Bilski, take your beef to Congress. It’s Congress’s job to make laws, and the Court’s job to interpret them. If the statute says “processes” are patentable, and another statute talks about patents on “methods of doing business”, that’s the end of the analysis. A business method is a process, therefore it’s patentable. It’s not the Court’s institutional role to substitute its judgment for that of Congress, and certainly not because you and all the other kooks think that it should.

1a. It’s been twelve years since State Street. Look at how American innovation has fallen apart since then. Except that it hasn’t.

2. Did you read the IEEE amicus filing? The Court’s opinion agrees with most of the amicus brief, except the specific test for patentability. The IEEE’s test has no basis in the law — you’re not allowed to rewrite the statute because you don’t like how it reads. See 1. above.

2a. Arguably, the IEEE’s test for patentability overlaps with the Court’s precedent on “abstract ideas”, which the Court relied on here to deny Bilski a patent.

3. This decision provided much clarity here. For the past year, the discussion has been whether the Supreme Court would kill “business method patents” and “software patents.” Instead, they were very clear that those items are patentable, and that one of the tests for patentable subject matter in this area is “machine or transformation.” How much clearer do you want it?

3a. The “confusion” the IEEE refers to comes from three early cases in this area: Parker, Benson, and Flook. Have you read those? Do you know why people think they’re confusing? Then maybe you’d know why the Supreme Court didn’t announce a bright-line test here.

4. They’re not talking about the “overall ruling” when they’re talking about the 5-4 number. Their quote clearly says the 5-4 decision says that “a new method of doing business can be patented, and that the ability to patent software should not be limited.” The “overall ruling” that Bilski didn’t deserve a patent was 9-0, but that’s not what they’re talking about.

5. The Court did address software patents, and all other kinds of patents. If it’s purely a software method patent, then it’s treated like any other non-software method and it’s eligible for a patent if it meets all of the other legal requirements.

I really appreciate a lot of what you write in the copyright space, and I think it’s very smart. But your “patents suck” writings are not only tedious, but also poorly thought out. Many of your posts on this topic suffer from confirmation bias, where you seek out information that only confirms your prejudices. Keep up the good work otherwise.

Sneeje (profile) says:

Re: It's okay to admit that you don't know what you're talking about.

This was an insightful and helpful post, except for your unfounded assertion about confirmation bias. I assume you have factual information that would demonstrate that there is a significant amount of data that would dispute his “prejudices”?

The above has been requested over and over again on this blog, and not once have I seen a satisfactory response–it would be refreshing to have some additional information for a change.

My definition of information that would support your assertion of confirmation bias: multiple peer-reviewed and widely-accepted studies and/or analysis based on peer-reviewed and widely-accepted statistics.

The tired, avoidance response I expect? “I’m not going to do your googling for you…” Please exceed my expectations.

Anonymous Coward (profile) says:

Re: Re: It's okay to admit that you don't know what you're talking about.

The U.S. has had a patent system since 1790 and we still out-innovate every other country on the planet. The pace of innovation in software and business methods in the past 12 years since State Street is incredible. Correlation isn’t causation, but surely you can point to a country that doesn’t recognize software patents and still out innovates us. How about Europe?

Sneeje (profile) says:

Re: Re: Re: It's okay to admit that you don't know what you're talking about.

Also, it makes little sense to claim the whole of the period since 1790 given that the patent law landscape looks very different today than it did even 20 years ago. The perspective on them has shifted from a rare, short-term government granted monopoly to handing them out like candy and a priority for the government to provide.

There is plenty of research demonstrating that this is harming long-term innovation, regardless of whether it “feels” like it isn’t. Suggest you read the recent GAO report, http://www.amazon.com/exec/obidos/ASIN/069111725X/techdirtcom, or http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1502864

Jose_X (profile) says:

Re: It's okay to admit that you don't know what you're talking about.

>> If you’re so upset about Bilski, take your beef to Congress. It’s Congress’s job to make laws, and the Court’s job to interpret them. If the statute says “processes” are patentable, and another statute talks about patents on “methods of doing business”, that’s the end of the analysis.

Thanks for pointing that out (section 273). I read the section a few times. Together with 101 and related sections, it puts many business methods into play.

Unfortunately, there is the issue of constitutionality.

102, of using such a low bar, and the 20 year grant means probably the vast vast majority of all business methods, if not all of them, that would pass those 35 USC tests would fail to be Constitutional. We must place 35 USC within the context of the Constitution. As a short-cut way of addressing this, the Court has rules of thumbs like forbidding abstractions, and I think on this ground the Bilski patent failed.

You can’t take away my free speech rights without amending the Constitution.

Until the Constitution is changed, Congress can’t pass laws that don’t promote the progress (or serve one of their other duties).

The Constitutional context applies to every single law. Rather than to strike down the entire law, it is placed within that context (like a filter). And the Court has until now used short-hand (unpatented) methods of addressing some of these issues. Judging by some of the ruling, they may start to use more tools in the future. This is all allowed and acceptable because the Constitution is the over-riding law, and it’s more efficient to write broader laws and then pass them through the filter.

>> 1a. It’s been twelve years since State Street. Look at how American innovation has fallen apart since then. Except that it hasn’t.

Today a much higher percentage of software for general use is open source v. back then. The majority of this is written by groups that don’t take out patents and really dislike software patents. They prefer to use licenses that defend against patents to a fair degree. Even some groups that do take out patents have pledged to support open source today much more than in the past (there are more software patents today, of course). What this says is that groups that don’t support patents (or aggressive use of them) have stepped up relative to everyone else. And part of the reason for this is because of.. the Internet.

The Internet has grown up significantly in this past decade. This had nothing to do with software patents and has been central to enabling a lot of innovation and superior forms of collaboration and distribution.

Also, a lot of software patents that came into existence since State Street have not been enforced except as part of the usual broad licensing deals, and those seeking rents tend to wait until a market has been established, so you wouldn’t see the bulk of the contributory negative effects in the early years.

As a whole, those that take out patents seek to levy taxes and manipulate winners and losers. They don’t seek to kill the golden goose (though there are obviously individual casualties and aggregation of control in fewer hands, something that hurts consumers and competition).

>> The Court’s opinion agrees with most of the amicus brief.

There are people on the other side of the road that experienced something similar.

>> Arguably, the IEEE’s test for patentability overlaps with the Court’s precedent on “abstract ideas”, which the Court relied on here to deny Bilski a patent

Again, with that test, perhaps no business method patent likely to be created in the next 100 years would pass.

This is the Courts’ ruling.

The argument at this point isn’t whether or not some business method or software patent may be created at some point in time and pass muster. The Court said this might be the case. The argument is about probabilities.

The test the Court used suggests they aren’t going to go easy on such patents.. as is proper based on the Constitution.

Alright, I think this covers it. Your other points are addressed by the above or else aren’t in dispute

Anonymous Coward (profile) says:

Re: Re: It's okay to admit that you don't know what you're talking about.

I don’t know what you mean when you say that business method patents are unconstitutional.

What bothers me is that I don’t get why software patents are special. It seems to me that either all patents are bad or no patents are bad. I don’t think it’s defensible to claim that every other kind of patent except software/business methods is fine.

Andrew D. Todd (user link) says:

An Assignment For Angry Dude.

Angry Dude, since, as you put it “SOFTWARE == HARDWARE,” it shouldn’t be any great difficulty for you to produce something with the following specifications:

Aircraft engine, chemical fueled, to run on kerosene.
Weight: 5 lbs.
Size, not more than 1 ft. long, and 3 inches in diameter.
Thrust: 100,000 lbs, at 50,000 ft and Mach 0.81.
Fuel consumption: not more than one pound fuel per million pound-hours of thrust.

Do you begin to understand the difference between hardware and software?

TtfnJohn (profile) says:

Re: Re: An Assignment For Angry Dude.

“SOFTWARE == HARDWARE (made of silicon and used in CPU chips, microcontrollers, DSPs, FPGAs, ASICs etc. to control device operations)”

What you’ve described is hardware. All completely useless and rather pointless bits of sand until SOFTWARE (aka algorithms) are run through it.

Your equivalence no more makes hardware the equivalent of software as it does make electricity the equivalent of a wall switch and a light simply because you complete the connection in the switch.

Unless, of course, you want to say electricity is the equivalent of the hardware is runs on.

Anonymous Coward (profile) says:

Re: An Assignment For Angry Dude.

I agree with Angry Dude. I don’t think there’s a principled reason that, e.g., a Babbage engine that performs calculations should be eligible for a patent, but a piece of software that does the exact same thing shouldn’t be patentable.

If you push very hard on the analysis, the execution of software sets registers and executes operations by moving electrons around and biasing transistors. Your software gets things done by affecting the hardware at the atomic level. To put it in Bilski terms, all software is tied to the particular machine that executes it, and all software transforms an article, i.e., the hardware that executes it.

Your counter-argument doesn’t hold weight. Lions and panthers are both cats. That’s not any less true because a panther isn’t a lion.

Jose_X (profile) says:

>> There is NO bright line dividing hardware and software

Yes, there is.

The physical laws and materials that apply to each are different despite the fact that there is a logical way to translate from one to the other and vice-versa.

It’s one thing to patent a superior (in some way) semiconductor creating processes.

It’s another thing to want to patent an arrangement of transistors. This arrangement could possibly have been generated from software tools used for generating circuits.

It’s yet a third thing, though very similar in spirit to the second, to want to patent an electronic software state that “runs” on an existing hardware architecture (eg, Von Neumann).

One is clearly patentable by past standards.

Three is the software case, and it should not be patentable (abstraction), for example, because of the vast number of potential contributors to the art and science.

Because of the software/hardware mapping, two perhaps should not be allowed to be patented either, but there are some differences in practice (eg, speech and innovation is limited on hard-coded physical “single-use” devices).

Les says:

...does not mean that unforeseen innovations such as computer programs are always unpatentable

Respectfully, it is your blog post that is misleading.

The Bilski ruling clearly addresses software patents. For example it says:

But times change.Technology and other innovations progress in unexpected ways. For example, it was once forcefully argued that until recent times,“well-established principles of patent law probably would have prevented the
issuance of a valid patent on almost any conceivable computer program.” Diehr, 450 U. S., at 195 (STEVENS, J., dissenting). But this fact does not mean that unforeseen innovations such as computer programs are always unpatentable.”

Les says:

Re: Re: ...does not mean that unforeseen innovations such as computer programs are always unpatentable

Fine, if that makes you feel better.

But, software is currently patentable. The Court is aware of that. The Court had an opportunity to change that and chose not to. As Mike points out, “In fact, it skips over that question pretty much entirely”.

So…in their silence, the majority said software is patentable.

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